The Navy actions regarding the collisions of USS FITZGERALD and USS MCCAIN are starting to come more into focus.
Here is a summary report from the Navy of some of the investigations.
Here is the appointment of a Central Disposition Authority for disciplinary actions related to the collisions.
Other circuits have held that a prisoner may file a petition for a writ of habeas corpus if his sentencing court has been dissolved.” Id. at 1093 (quoting Prost v. Anderson, 636 F.3d578, 588 (10th Cir. 2011) (explaining that, for military prisoners, “the resort to § 2241 is the norm rather than the exception . . .
due to the evanescent nature of court-martial proceedings:
the sentencing court literally dissolves after sentencing and is no longer available to test a prisoner’s collateral attack”)).
From Prof. Berman at Sentencing Law & Policy.
As reported in this press release, yesterday “Senators Orrin Hatch (R-UT), Mike Lee (R-UT), Ted Cruz (R-TX), David Perdue (R-GA), and Rand Paul (R-KY) introduced legislation to strengthen criminal intent protections in federal law.” Here is more from the press release:
Their bill, the Mens Rea Reform Act of 2017, would set a default intent standard for all criminal laws and regulations that lack such a standard. This legislation would ensure that courts and creative prosecutors do not take the absence of a criminal intent standard to mean that the government can obtain a conviction without any proof a guilty mind….
I have noticed an increase is improper prosecution arguments over the last five years — connected I think to sexual assault cases mostly. So here is an article of interest.
Combating Prosecutor Misconduct in Closing Arguments, Oklahoma Law Review, Vol. 70, No. 3, Forthcoming
From the abstract:
I’ve been told more than once that a person doesn’t make a false allegation of rape because they have been rejected by someone they are romantically interested in. Such denials a batguano crazy. Take this as an example.
Following the verdict, Joanne Jakymec, chief Crown prosecutor for Wessex said: “Rebecca Palmer indulged in consensual sexual activity with the victim, but on being rejected by him embarked on a malicious campaign which led to him being arrested on more than one occasion and held in custody for periods of time.
From the Swindon Advertiser.
Trial and appellate lawyers often need to interpret what a statute means and how it applies to their case.
“There are some great Supreme Court cases on statutory interpretation, including the famous discussion regarding whether a tomato is a fruit.”
Says Prof. Tessa Dysart on Appellate Advocacy Blog. She is referring to Nix v. Hedden, 149 U.S. 304 (1893), which held that “under customs law tomatoes counted as vegetables — and the importer had to keep paying the tariff.” Her post is referring to State v. Barnes, decided 12 October 2017, by the Washington Supreme Court.
On 12 October 2017, the CAAF granted petitions worthy of watching:
No. 17-0556/AR. U.S. v. Joseph R. Armstrong. CCA 20150424. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER ASSAULT CONSUMMATED BY A BATTERY IS A LESSER INCLUDED OFFENSE OF ABUSIVE SEXUAL CONTACT BY CAUSING BODILY HARM.
At SimpleJustice blog (a blog worth following) there is a piece about Judge Kopf and a tweet which leads to a discussion of a prosecutors obligation to provide discovery to the defense.
Let me start with some basics and two cases that prosecutors and defense lawyers know (or should know) well. In Brady v. Maryland, the Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Evidence is “material” if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.
Relatedly, in Giglio v. United States, the Supreme Court held that prosecutors must disclose to the defense any “understanding or agreement as to a future prosecution” that the government has made with a material witness. That notion has been expanded to requiring the production of impeachment information of a material character. Specifically, this is thought of as information that either casts a substantial doubt upon the accuracy of any evidence—including witness testimony—the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence.
It is common to obtain character and rehabilitation letters for a service-member at trial. There is an art to getting and using good letters.
Rule 1, don’t have a letter (or testimony) in which the writer impeaches the verdict. “This is out of character,” or something to that effect is much better and won’t draw criticism from the judge.
Here is a link to Simple Justice, a blog worth following, in which there is a discussion of support letters.
Court-Martial Trial Practice Blog
